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The Business & Property Courts Witness Evidence Working Group has published its final report concerning reforms to the current practice surrounding witness evidence. The report shows that while there is broad consensus in favour of reform, there is a divergence of views amongst members of the legal profession and court users as to how it should be achieved. As such, the report’s recommendations are quite modest, especially when viewed against some of the more radical proposals considered by the working group.
In the frenzy of the final week leading up to the 2019 General Election, you could be forgiven for having missed the publication of the final report of the Business & Property Courts Witness Evidence Working Group on 6 December 2019 (“the Report”). Its conclusions make clear that change to the current practice on witness evidence is on the horizon, and legal practitioners should brace for reforms in the early part of this decade.
The Report briefly outlines the perceived problems with the status quo which provide the impetus for reform. Some key examples are:
Only 6% of participants considered that witness statements achieve the aim of delivering the best evidence possible, while 45% considered that this aim was only met partly, or not at all. Reasons given for this failure included excessive length, foray into legal argument, incorporation of lengthy quotation from documents, irrelevancy and departure from the witness’s own evidence.
The survey tested the appetite of participants for certain specific reforms. Some radical (and some horrifying) examples, which were overwhelmingly rejected, included:
Only three specific reforms received the support of a majority of participants, albeit there were sizeable minorities opposed to the particular reform in each case:
The working group considered a range of specific proposals, and their final recommendations are as follows:
Almost all practitioners will have been served with (and perhaps even drafted) a witness statement that is long on detail and florid language but short on relevance at some point in their career. As such, a reshaping of the rules, practice and enforcement surrounding factual witness evidence is to be welcomed, and the working group proposals seem perfectly sensible. On the enforcement side, while some may not welcome the further encroachment of judicial criticism and costs sanctions into daily practice, as we all know, this is the post-Jackson direction of travel.
Practitioners representing clients from culturally distinct jurisdictions whose English is not perfect (but who do not ordinarily require an interpreter) in respect of complex cases may be concerned by these proposals. The process of proofing such clients in respect of emotionally charged, complex factual evidence, and committing that evidence to writing can be a difficult process for all concerned and requires a degree of, at the very least, linguistic adjustment. Further, should such clients be required to give oral evidence-in-chief, they may be at an inherent disadvantage when compared to an English national, which may have decisively negative consequences on an otherwise entirely meritorious case. This may lead to an increased reliance upon interpreters, which will inevitably lead to cost increases, and may in fact increase the risk of the witness’s own words being distorted.
As far as oral evidence is concerned, the power of the Court to control the deployment of oral evidence-in-chief should provide a level of protection for such clients, but it’s easy to see this area becoming a tactical battleground between parties. In respect of the former point regarding the production of statements, considerable practical thought may be needed in order to find ways to change current practice if the witness statements of such clients are to be concise, in their own words, and still provide best evidence possible.
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